The meeting of contract law with fundamental rights is at the center of numerous contemporary legal debates, notably with regard to the place of the religious in society, the commodification of the body, or respect for human dignity. This encounter has prodded a reflection from numerous jurists. The aim of this study is to bring a modest contribution to the discussion, through a comparison of French and Québec law.
The exigencies of respect for fundamental rights is evolving in the two legal systems. Because fundamental rights instruments play a larger role in our laws, their authority in contractual matters is becoming ineludible. Indeed, it should be noted that fundamental rights have not reached their full extent in this field. They emerge within contracts, because from revisiting to re-writing, Québec and French contract law are increasingly influenced by the obligation to comply with fundamental rights.
However, this evolution in France and in Quebec is accompanied by a requirement that fundamental rights be allowed social admission. From that point on, we can see power over fundamental rights being asserted within contacts, that power evolving from medical contracts to work contracts towards becoming inescapable for their enforcement. Yet, the danger inherent in such power over fundamental rights calls for serious deliberations on the limits that must be set upon it, both with regard to the dignity of the human person, and in relation to its legitimacy.